Digital Commons Network^™

Race, Class, And Access To Civil Justice, Sara Sternberg Greene

Faculty Scholarship

After many years of inattention, policymakers are now focused on troubling statistics indicating that members of poor and minority groups are less likely than their higher-income counterparts to seek help when they experience a civil justice problem. Indeed, roughly three-quarters of the poor do not seek legal help when they experience a civil justice problem, and inaction is even more pronounced among poor blacks. Past work on access to civil justice largely relies on unconfirmed assumptions about the behavior patterns and needs of those experiencing civil justice problems. At a time when increased attention and resources are being devoted to …

Quieting The Sharholders' Voice: Empirical Evidence Of Pervasive Bundling In Proxy Solicitations, James D. Cox, Fabrizio Ferri, Colleen Honigsberg, Randall S. Thomas

Faculty Scholarship

The integrity of shareholder voting is critical to the legitimacy of corporate law. One threat to this process is proxy “bundling,” or the joinder of more than one separate item into a single proxy proposal. Bundling deprives shareholders of the right to convey their views on each separate matter being put to a vote and forces them to either reject the entire proposal or approve items they might not otherwise want implemented.

In this Paper, we provide the first comprehensive evaluation of the anti-bundling rules adopted by the Securities and Exchange Commission (“SEC”) in 1992. While we find that the …

Criminal Labor Law, Benjamin Levin

Publications

This Article examines a recent rise in civil suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In …

Colorado Rule Of Evidence 502: Preserving Privilege And Work Product Protection In Discovery, Christopher B. Mueller, Ronald J. Hedges, Lino S. Lipinsky

Publications

No abstract provided.

The Social Boundaries Of Corporate Taxation, Sloan G. Speck

Publications

Historically, the tax law distinction between corporate and conduit treatment drew primarily on doctrinal understandings, treating state-law corporations as corporate for tax purposes and classifying unincorporated legal entities based on their resemblance to conventional state-law corporations. More recently, commentators and Treasury have abandoned these doctrinal touchstones in favor of efficiency, broadly construed, as the guiding principle in determining an entity’s tax classification. This Article argues that, while important, efficiency considerations should not function as the sole arbiter of the boundary between corporate and conduit tax treatment. First, classical corporate taxation is, in many ways, deeply embedded within a larger network …

The President's Faithful Execution Duty, Harold H. Bruff

Publications

No abstract provided.

Beyond Legality: The Legitimacy Of Executive Action In Immigration Law, Ming H. Chen

Publications

Recent uses of executive action in immigration law have triggered accusations that the President is acting imperially, like a king, or as a lawbreaker. President Obama’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs, which provide protection from deportation and a work permit during a temporary period of lawful presence, serve as the lightning rod for these accusations. But even as legislative and litigation challenges to DACA proceed, many states appear to accept and comply with it, including nearly all of the states that have joined the Texas v United States lawsuit that challenges …

Consent Confusion, Aya Gruber

Publications

The slogans are ubiquitous: “Only ‘Yes’ Means ‘Yes’”; “Got Consent?”; “Consent is Hot, Assault is Not!” Clear consent is the rule, but the meaning of sexual consent is far from clear. The current state of confusion is evident in the numerous competing views about what constitutes mental agreement (grudging acceptance or eager desire?) and what comprises performative consent (passive acquiescence or an enthusiastic “yes”?). This paper seeks to clear up the consent confusion. It charts the contours of the sexual consent framework, categorizes different definitions of affirmative consent, and critically describes arguments for and against affirmative consent. Today’s widespread uncertainty …

Not Affirmative Consent, Aya Gruber

Publications

No abstract provided.

Truth And Lies In The Workplace: Employer Speech And The First Amendment, Helen Norton

Publications

Employers' lies, misrepresentations, and nondisclosures about workers' legal rights and other working conditions can skew and sometimes even coerce workers' important life decisions as well as frustrate key workplace protections. Federal, state, and local governments have long sought to address these substantial harms by prohibiting employers from misrepresenting workers' rights or other working conditions as well as by requiring employers to disclose truthful information about these matters.

These governmental efforts, however, are now increasingly vulnerable to constitutional attack in light of the recent antiregulatory turn in First Amendment law, in which corporate and other commercial entities seek -- with growing …

Inclusive Crowdfunding, Andrew A. Schwartz

Publications

Securities “crowdfunding” — the sale of unregistered securities over the internet to large numbers of investors, each of whom contributes only a small amount — is a new concept that comes in at least three types: (1) retail crowdfunding under Title III of the federal JOBS Act of 2012; (2) accredited crowdfunding under Title II of the JOBS Act, which is legally restricted to accredited investors; and (3) intrastate crowdfunding under state law. Which of these three types — all at the dawn of their existence — holds the most promise?

Without claiming to finally resolve the issue, this Article …

Financing Corporate Elections, Andrew A. Schwartz

Publications

Elections for corporate directorships have become more competitive and expensive in recent years, raising important questions of corporate campaign finance, such as whether an insurgent campaign must disclose the source of its funding and whether a director is permitted to receive third-party compensation during her term in office (known as a "golden leash"). These present novel and unanswered issues of corporate law, but many analogous issues have been resolved in the political sphere using the First Amendment and a well-developed line of Supreme Court case law beginning with Buckley v. Valeo and continuing through Citizens United and other key precedents. …

Trust In Immigration Enforcement: State Noncooperation And Sanctuary Cities After Secure Communities, Ming H. Chen

Publications

The conventional wisdom, backed by legitimacy research, is that most people obey most of the laws, most of the time. This turns out to not be the case in a study of state-local participation in immigration law enforcement. Two enforcement programs involving the use of immigration detainers, a vehicle by which the federal government (through ICE) requests that local law enforcement agencies (LEAs) detain immigrants beyond their scheduled release upon suspicion that they are removable, demonstrate the breakdown of conventional wisdom. In the five years following initiation of the Secure Communities program, a significant and growing number of states and …

Classification Standards For Health Information: Ethical And Practical Approaches, Craig Konnoth

Publications

Secondary health information research requires vast quantities of data in order to make clinical and health delivery breakthroughs. Restrictive policies that limit the use of such information threaten to stymie this research. While the Notice of Proposed Rulemaking (NPRM) for the new Common Rule permits patients to provide broad consent for the use of their information for research, that policy offers insufficient flexibility. This Article suggests a flexible consenting system that allows patients to consent to a range of privacy risks. The details of the system will be fleshed out in future work.

Labor And Employment Law At The 2014-2015 Supreme Court: The Court Devotes Ten Percent Of Its Docket To Statutory Interpretation In Employment Cases, But Rejects The Argument That What Employment Law Really Needs Is More Administrative Law, Scott A. Moss

Publications

No abstract provided.

The Energy Prosumer, Sharon B. Jacobs

Publications

Decentralization is becoming a dominant trend in many industries, and the electricity industry is no exception. Increasing numbers of energy consumers generate their own electricity and/or provide essential grid services such as storage, efficiency, and demand response. This Article offers a positive account of the emergence of these new energy actors, which it calls "energy prosumers. " It then frames several doctrinal and procedural puzzles that prosumers create, including jurisdictional puzzles, distributional concerns, and democratic challenges. Ultimately, it concludes that prosumers can be a positive disruptive force in the electricity industry if courts and regulators can manage these challenges effectively. …

How Presidents Interpret The Constitution, Harold H. Bruff

Publications

No abstract provided.

When The Default Is No Penalty: Negotiating Privacy At The Ntia, Margot E. Kaminski

Publications

Consumer privacy protection is largely within the purview of the Federal Trade Commission. In recent years, however, the National Telecommunications and Information Administration (NTIA) at the Department of Commerce has hosted multistakeholder negotiations on consumer privacy issues. The NTIA process has addressed mobile apps, facial recognition, and most recently, drones. It is meant to serve as a venue for industry self-regulation. Drawing on the literature on co-regulation and on penalty defaults, I suggest that the NTIA process struggles to successfully extract industry expertise and participation against a dearth of federal data privacy law and enforcement. This problem is most exacerbated …

Recovering Forgotten Struggles Over The Constitutional Meaning Of Equality, Helen Norton

Publications

No abstract provided.

Saving The Public Interest Class Action By Unpacking Theory And Doctrinal Functionality, Suzette M. Malveaux

Publications

No abstract provided.

Catalog Denison University 2016-2017

Denison University Catalogs

Denison University Course 2016-2017

Nationwide Permit 13, Shoreline Armoring, And The Important Role Of The U.S. Army Corps Of Engineers In Coastal Climate Change Adaptation, Travis Brandon

Law Faculty Scholarship

The ongoing armoring of the nation’s coastlines with seawalls and bulkheads causes the inevitable destruction of miles of coastal wetlands. Armoring increases the rate of shoreline erosion and blocks the long term migration of wetlands inland, a process that will be necessary for coastal wetlands to survive sea level rise. Coastal armoring also reduces the habitat available to coastal species, and blocks access to the upper reaches of the beach for sea turtles and other species that depend on the beach for nesting. And yet, despite these well established and significant environmental harms, the United States Army Corps of Engineers …

Local, State, And Federal Responses To Stalking: Are Anti-Stalking Laws Effective?, Tracey Carter

Law Faculty Scholarship

Statistics show that there are currently 7.5 million victims of stalking in the United States each year. The year 2014 commemorated the 20th Anniversary since passage of the federal Violence Against Women Act of 1994 (“VAWA”) that was signed by President Bill Clinton on September 13, 1994. Passage of this Act marked a key transformation in our nation’s response to the crimes of domestic violence, sexual assault, and stalking. The VAWA was established to promote “collaboration among law enforcement, health care providers, nonprofit service groups, community leaders, and the private sector” to combat these crimes. In fact, the VAWA was …

Effect Of Mindfulness Training On Interpretation Exam Performance In Graduate Students In Interpreting, Julie E. Johnson

Doctoral Dissertations

Many graduate interpreting students struggle because the real-time, interactive nature of interpreting dictates that they be able to regulate their attention across different parallel cognitive activities and manage the inherent stress and unpredictability of the task. Within the framework of Cognitive Load Theory, this mixed-methods study explored the effect of short-term mindfulness training on consecutive interpreting exam performance using a quasi-experimental repeated-measures design. It also examined the relationships among mindfulness, stress, aspects of attention, and interpreting exam performance. The sample included 67 students (age M = 26.9 years; 82% female) across seven language programs (Chinese, French, German, Japanese, Korean, Russian, …

Exploration Of Soka Education Principles On Global Citizenship: A Qualitative Study Of U.S. K-3 Soka Educators, Mahi Takazawa

Doctoral Dissertations

The globalized world continues to be wracked by environmental, economic, sociopolitical, and spiritual crises (Earth Council, 2002; Laszlo, 2009). Education for global citizenship holds the key to resolving these problems (Andrzejewski & Alessio, 1999; Ikeda, 2005). Unfortunately, U.S. K-12 education for global citizenship is predominantly driven by hegemonic neoliberal interests with the sole aim of producing human capital for global economic competition instead of developing socially responsible global citizens (Andrzejewski & Alessio, 1999; Giroux, 2012). Fostering a mindset for global citizenship urgently requires an alternative form of education that is ethical in its orientation (Noddings, 2005). One such model is …

Being Student And Practitioner Centered: Lessons Learned From Integrating A Recreation Management Department Into A Business School, Patti A. Freeman, Mat D. Duerden, Brian J. Hill

Faculty Publications

In July 2009, Brigham Young University’s Recreation Management (RecM) Department moved to the Marriott School of Management (MSM), beginning its integration into a nationally ranked business school, including the transition from a college with little coordination between departments to one where all majors share a common core of classes. Despite initial feelings of uncertainty, many insights over time emerged as to how the RecM department could better serve students and professionals. This paper shares some of the lessons the RecM Department learned that hold applicability for other recreation departments, including the (1) influence of names on external perceptions and curriculum, …

The Ownership And Trading Of Debt Claims In Chapter 11 Restructurings, Victoria Ivashina, Benjamin Iverson, David C. Smith

Faculty Publications

Using a novel data set that covers individual debt claims against 136 bankrupt US companies and includes information on a subset of claims transfers, we provide new empirical insight regarding how a firm’s debt ownership relates to bankruptcy outcomes. Firms with higher debt concentration at the start of the case are more likely to file prearranged bankruptcy plans, to move quickly through the restructuring process, and to emerge successfully as independent going concerns. Moreover, higher ownership concentration within a debt class is associated with higher recovery rates to that class. Trading of claims during bankruptcy concentrates ownership further, but this …

Information Exploitation? A Pre-Crisis Rmbs Issuer's Private Information, Darren Aiello

Faculty Publications

This paper describes an important borrower risk factor observed privately by the issuer of non-agency RMBS. The private information available to the issuer is drawn from behavioral cues exhibited early in the life of the loan. Mortgage borrowers that make their first six payments at least a day prior to the due date are 14.8 percentage points less likely to become delinquent (equivalent to a 91-point increase in FICO score). This effect is persistent, unobservable at loan origination, and privately observed by the issuer prior to securitization. Both the credit rating agencies and the investor do not appear to be …

Measurement And Outcomes Of Identity Communication In Virtual Teams, Susan A. Brown, Sherry M. B. Thatcher, David W. Wilson

Faculty Publications

Virtual teams play an important role in the modern economy, and many organizations struggle to overcome the weaknesses inherent in technologymediated work. Drawing from a strong empirical foundation for identity-related outcomes in nonmediated settings, we propose that perceived virtual identity communication accuracy positively impacts virtual team trust and performance. We further propose that capabilities of the communication medium can either support or hinder perceived virtual identity communication accuracy. In three studies with a cumulative sample of N=410, this research-in-progress paper reports on the first phase of a two-phase study. We develop survey scales for a medium’s identity communication capabilities and …

Storyboarding For Invention: Layering Modes For More Effective Transfer In A Multimodal Composition Classroom, Jon Balzotti

Faculty Publications

This article describes an innovative pedagogical technique for multimodal composition courses: the use of storyboarding as an invention tool across multiple composition platforms. Student response data and our textual analysis of their multimodal texts over a two-year period reveal some challenges when new media projects are taught alongside traditional essay writing. Our research also shows that basic writing students were more likely to see similarities between the two assignments when they were asked to use a similar process of invention. Utilizing composition concepts in tandem to compose two similar but different products (essay and video) that ostensibly reside in different …